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2005 DIGILAW 497 (PAT)

Braj Kishore Prasad v. State Of Bihar

2005-05-06

V.N.SINHA

body2005
Judgment 1. Heard Sri J.P. Shukla, Senior Advocate for the petitioner and Sri Sudhir Kumar, J.C. to G.P. 4 for the State of Bihar and its functionaries. 2. Petitioner, who was appointed as Compounder in Veterinary Hospital, Maniari, has filed this writ application to set aside the order, bearing Memo. No. 3858 dated 7.8.1998, Annexure-1, whereunder Director, Animal Husbandry, Bihar Patna, Respondent No. 3 has held that the Regional Director who appointed the petitioner as Compounder in the Veterinary Hospital, Maniari had neither jurisdiction to appoint nor vacancy was available in the said Veterinary Hospital over which petitioner could have been appointed as Smt. Leela Sharma was appointed as dresser against the vacancy of Compounder-cum-Dresser, vide order, bearing Memo. No. 23 dated 10.12.1990. 3. Before considering the submissions of the two sides regarding the validity of the order dated 7.8.1998, Annexurer-1, it is necessary to mention a few facts. 4. Petitioner was engaged as a daily rated Compounder in the Veterinary Hospital, Maniari by the Regional Director, Animal Husbandry, North Bihar Region, Muzaffarpur under order dated 18.7.1988, Annexure-4. When the petitioner completed continuous engagement as Compounder in the said hospital for more than 240 days his case was considered by the Selection Committee for regularization as per the instructions of the State Government contained in Resolution dated 16.3.1980 and Gazette dated 26/21.8.1986 and the instructions of the Director, Animal Husbandry dated 16.2.1989. The Selection Committee made recommendation dated 27.2.1989 to regularize the services of the petitioner whereafter the order regularizing his service, bearing Memo. No. 40 dated 27.2.1989, Annexure-5 was issued. It appears, there is typographical error in the order dated 27.2.1989 as in the body of the said order for 27.2.1989, 29.2.1989 has been typed and when this fact was pointed out to the learned counsel appearing for the petitioner, he submitted that supplementary affidavit clarifying the aforesaid position shall be affirmed during the course of the day. While the petitioner continued as Compounder, on the strength of aforesaid order dated 27.2.1989, Annexure-5 one Ram Pravesh Rai filed C.W.J.C. No. 7719 of 1993 before this Court asserting therein that Respondent Nos. 7, 8 (the petitioner herein and one another) who were engaged later than Ram Pravesh Rai, were regularized on Class III post ignoring the rightful claim of the petitioner Ram Pravesh Rai. 7, 8 (the petitioner herein and one another) who were engaged later than Ram Pravesh Rai, were regularized on Class III post ignoring the rightful claim of the petitioner Ram Pravesh Rai. This Court under orders dated 15.2.1995, Anexure-6 disposed of that writ application with direction to the Director, Animal Husbandry to look into the grievance of Ram Pravesh Rai vis-a-vis Respondent Nos. 7 and 8 of the said application i.e. petitioner herein and one another. In compliance of the orders of this Court, the Director, Animal Husbandry examined the claim of Ram Pravesh Rai vis-a-vis the petitioner and one another and under orders dated 26.4.1996, Annexure-1 A held that on 27.2.1989 the date on which services of the petitioner was regularized as Compounder by the Regional Director, the Regional Director had no such power to appoint and regularize on Class III post of Compounder and accordingly the services of the petitioner was terminated from the post of Compounder in the Veterinary Hospital Maniari. 5. Petitioner assailed the termination order dated 25.4.1996, Annexure-1 A by filing C.W.J.C. No. 5591 of 1996, which was disposed of under orders dated 22.10.1997, Annexure-2 with direction to the Director, Animal Husbandry to hear the petitioner in regard to the findings recorded in the order dated 26.4.1996, Annexure-1 A and then to pass a fresh order in accordance with law with further observation that payment of salary of the intervening period shall be subject to the final order passed by the Director after hearing the petitioner. In compliance of orders of this Court dated 22.10.1997, Annexure-2, the authorities issued notice to the petitioner and after hearing him passed the impugned order dated 7.8.1998, Annexure-1 holding that on 27.2.1989 the Regional Director had no authority to make appointment on Class III post and further there being no vacancy available the appointment of the petitioner was wholly without jurisdiction as one Smt. Leela Sharma was already appointed as Dresser on the post of Compounder-cum-Dresser under order dated 10.12.1990 and there was no vacancy available against which petitioner could have been appointed. 6. Learned counsel for the petitioner has assailed the order dated 7.8.1998, Annexure-1 on two grounds. 6. Learned counsel for the petitioner has assailed the order dated 7.8.1998, Annexure-1 on two grounds. (i) that on the relevant date i.e. 18.7.1988/27.2.1989 the Regional Director had the power and jurisdiction to make appointment on Class III/ IV post within his region and (ii) that on the relevant date i.e. 18.7.1988/27.2.1989 there was vacancy of Compounder available in the Veterinary Hospital, Maniari. 7. In order to establish that Regional Director had the jurisdiction and power to make appointment on Class III/IV post, learned counsel for the petitioner has first referred to the instructions of the State Government contained in Letter No. 14434 dated 29.10.1957, Annexure-20, in paragraphs 2 and 3 whereof the Deputy Director was entrusted/delegated within the range the powers to make appointment on Class III/IV post maximum pay of which does not exceed Rs. 100/- per month excluding Government Farm, Patna and Central Poultry Farm, Patna. Learned counsel further submitted that the instructions contained in letter dated 29.10.1957, Annexure-20 was further reiterated under instructions of the Government contained in letter dated 17.2.1962, Annexure-B to the supplementary counter affidavit, whereunder the power to appoint on Class III ministerial staff whose salary does not exceed Rs. 100 per month was delegated to the Range Officers. In this connection he further placed reliance on the resolution of the Government dated 18.3.1980, Annexure-20/1 whereunder the State Government with a view to successfully expedite the implementation of the programme of Animal Husbandry Department decided to strengthen the hands of Regional Officers and for that purpose created the post of Regional Director and declared the Regional Director as the highest officer of the Animal Husbandry Directorate posted in the Division as also vested the Regional Director(s) with the powers of Director, Animal Husbandry together with the powers of Head of Office so that Regional Director is able to successfully guide the implementation of the programmes and schemes of the department within the area of his jurisdiction. The Regional Directors in terms of the instructions contained in letter dated 29.10.1957, 17.2.1962 and resolution dated 18.3.1980, Annexure-20, B and 20/1 continued to exercise the power to make appointment on Class III/IV post maximum pay of which did not exceed Rs. 100/- until the State Govt. The Regional Directors in terms of the instructions contained in letter dated 29.10.1957, 17.2.1962 and resolution dated 18.3.1980, Annexure-20, B and 20/1 continued to exercise the power to make appointment on Class III/IV post maximum pay of which did not exceed Rs. 100/- until the State Govt. issued letter No. 637, 262, dated 28.10.1991, 21.2.1992 whereunder the powers of the Regional Director to make appointment on Class IV/ III post was taken away with effect from the date of issue of the two letters which fact is evident from the instructions contained in letter No. 2084 dated 16.4.1996, Annexure-14. 8. On the strength of the aforesaid documents, learned counsel for the petitioner further called upon the learned State Counsel to produce any order issued by the Director during the period between 29.10.1957 to 28.10.1991/21.2.1992 whereunder appointment on Class III/IV post maximum pay of which did not exceed Rs. 100/- in any range other than Central/Patna Range has been made by the Director. The State counsel in spite of due indulgence granted for this purpose could not produce any such order. 9. In support of the submission that the Regional Director, Muzaffarpur had the jurisdiction and power to make appointment on Class III post of Compounder, learned counsel for the petitioner has relied on the orders of this Court dated 22.11.2002, passed in the case of Sudhanshu Shekhar Mallick vs. The State of Bihar & Ors. bearing C.W.J.C. No. 10695 of 1998, Annexure-21 series, whereunder a Single Judge of this Court with reference to aforesaid letter No. 262 dated 21.2.1992 held that the Regional Director of the Animal Husbandry Department was delegated with the powers of appointment on Class III post for the period between 18.3.1980 and 21.2.1992 which order of the learned Single Judge was even affirmed by Division Bench of this Court under orders dated 12.9.2003 passed in L.P.A. No. 778 of 2003 (State of Bihar & Ors. vs. Sudhanshu Shekhar Mullick) when the said L.P.A. was dismissed quoting with approval the following passage from the said judgment: "He, however, could not give details of such appointment as to whether they were made between 18.3.80 and 21.2.92 or before/after when the Regional Directors had no such power or the power was withdrawn respectively. Counsel for the State also attempted to submit that the initial appointment of the petitioner was not in accordance with law." 10. Counsel for the State also attempted to submit that the initial appointment of the petitioner was not in accordance with law." 10. In this connection, learned counsel for the petitioner has further relied on the other orders dated 23.9.2004, 21.2.2005 and 11.3.2005 whereunder Single Judge of this Court has held that during the period between 18.3.1980 to 21.2.1992, the Regional Director, Animal Husbandry had the power to make appointment on Class ill post within the range of his jurisdiction. 11. In order to establish that there was a vacancy of Compounder available in the Maniari Veterinary Hospital on the relevant date, learned counsel for the petitioner has relied on the gift deed dated 15.1.1962 whereunder the erstwhile owner of the Veterinary Hospital, Maniari had gifted the Hospital to the State of Bihar. Perusal of the gift deed indicates that the services of Sri Vishwanath Prasad working in the hospital as Compounder was also made over to the State of Bihar while gifting the hospital to the State of Bihar. Later the authorities of the State Government, sanctioned the post of Compounder in the said hospital and proceeded to fix the pay of Sri Vishwanath Prasad and other employees of the Veterinary Hospital, Maniari with effect from the date of its provincialisation and the salary of the employees of the hospital became a charge to be debited under the Head 33, Animal Husbandry Hospital and Dispensary which fact is evident from the letter of the Joint Secretary of the Agriculture and Animal Husbandry Department dated 29.1.1970, Annexure-13 series and the chart appended thereto. Sri Vishwanath Prasad superannuated with effect from 31.5.1987 which fact is evident from the inspection report of the Regional Director contained in Memo. No. 1888 dated 27.11.1987, Annexure-10. It is thus evident that one post of Compounder was available in the Veterinary Hospital, Maniari with effect from the date of its provincialisation and the same became vacant after the superannuation of Sri Vishwanath Prasad with effect from 31.5.1987. With reference to Finance Departments Resolution Nos. 6021, 6022 and 6023 effective from 1.1.1986, Annexure-18 it has been submitted that in the Animal Husbandry Department the post of Compounder and Dresser are different as different pay scales are admissible to the holders of the two post. On the strength of the said resolution, Annexure-18, it is submitted that appointment of Smt. Leela Sharma under Memo. 6021, 6022 and 6023 effective from 1.1.1986, Annexure-18 it has been submitted that in the Animal Husbandry Department the post of Compounder and Dresser are different as different pay scales are admissible to the holders of the two post. On the strength of the said resolution, Annexure-18, it is submitted that appointment of Smt. Leela Sharma under Memo. No. 23 dated 12.10.1990 was against a different post of Dresser which had no connection with the earlier appointment of the petitioner on the post of Compounder. 12. On the other hand, learned counsel for the State has opposed the prayer made in the writ petition with reference to the circular of the State Government Bearing No. 3041 dated 17.7.1962, Annexure-B to the supplementary affidavit as according to the State counsel delegation of the authority to appoint made under the said letter is limited only in respect of the ministerial servant as defined under Rule 30 and identified under appendix V of the Bihar Service Code and according to him Compounder is not a ministerial servant and the Regional Director was never vested with the powers to make appointment on the post of Compounder in the Veterinary Hospital. In support of the aforesaid submission, learned State Counsel has relied on the Division Bench Judgment of this Court dated 6.12.1999, passed in L.P.A. No. 163 of 1999(R) (Akhilesh Prasad vs. The State of Bihar & Ors.). In paragraphs 9 and 10 of the said Division Bench Judgment, this Court with reference to the Resolution of the State Government dated 18.3.1980, Annexure-20/1 has held that the Regional Director may be delegated with the powers of Director, Animal Husbandry and the head of his Office/Division, but there was no specific delegation of powers of appointment on Class III post in the Regional Director which is specifically vested in the Director, Animal Husbandry as those posts are State cadre posts. Learned State Counsel further placed reliance over another Division Bench Judgment of this Court in the case of Sanjay Raj vs. The State of Bihar & Ors., C.W.J.C. No. 1486 of 1999 disposed of under orders dated 25.1.2005 whereunder this Court following the earlier judgment of the Division Bench in the case of Akhilesh Prasad (supra) again reiterated the same view that the Regional Director, Animal Husbandry was never delegated with the powers of appointment on Class III post. 13. 13. In reply, counsel for the petitioner, has distinguished the aforesaid judgment of this Court rendered in the case of Akhilesh Prasad and Sanjay Raj (supra) and has submitted that Division Bench of this Court in the said two judgment had no occasion to consider the import of the delegation of the powers to make appointment on Class III ministerial post made in favour of the Range Officers under circular letter of the State Government dated 29.10.1957, 17.2.1962, Annexure-20B as according to learned counsel for the petitioner thereunder the State Government specifically delegated the power to make appointment on Class III post in the Range office/hospital pay whereof did not exceed Rs. 1000/- per month in favour of Range Officers which was withdrawn under Government Letter No. 262 dated 21.2.1992. He further invited my attention to the observations of the Division Bench itself made in paragraph 11 of Akhilesh Prasad (supra) which is extracted below: "Even assuming for the sake of argument that the Regional Director, Animal Husbandry Department was empowered to make appointment to State cadre posts even then the appointment was highly illegal as the same was made without following the procedure for appointment, namely, on the recommendation of the Awar Sewa Chayan Parishad." With reference to the aforesaid observation made in paragraph 11, learned counsel for the petitioner submitted that it is evident from the aforesaid observation that the Hon ble Division Bench was not sure as to whether Regional Director was ever vested/delegated with the powers of appointment and dismissed the writ Appeal on the ground that appointment was made without following any procedure. Perusal of the order dated 27.2.1989, Annexure-5 however indicates that the services of the petitioner on the post of Compounder was regularized in compliance of the resolution of the State Government as also on the recommendation of the Selection Committee which had considered his case on 27.2.1989 and thus according to the learned counsel for the petitioner, there was no violation of the provisions contained in Articles 14 and 16 of the Constitution as it is nobodys case that petitioner never appeared before the Selection Committee and the order dated 27.2.1989 regularising him on the post of Compounder was issued without the recommendation of the Selection Committee. 14 Having heard counsel for the parties and having perused the writ petition, supplementary affidavit, counter affidavit, supplementary counter affidavit, rejoinder affidavit as also the different resolutions/ circulars issued by the State Government from time to time, including the circular dated 29.10.1957, 17.2.1962, Annexure-20B I am of the view that the Deputy Director was initially delegated under circular dated 29.10.1957, Annexure-20 with the powers to make appointment on Class III post in a range office/hospital of which maximum pay did not exceed Rs. 100/-. The aforesaid delegation was again reiterated when the State Government issued circular letter dated 17.2.1962, Annexure-B in supersession of all previous orders issued on the subject and thereunder again full powers of appointment on Class III ministerial post maximum pay whereof did not exceed Rs. 100/- in a range office/hospital was delegated in favour of the range officer. Under Resolution dated 18.3.1980, Annexure-20/1, the State Government created the post of Regional Director and declared the Regional Director as head of the office and Division as also vested the Regional Director with all the powers of Director, Animal Husbandry. The delegation made under circular letter dated 29.10.1957 and reiterated under circular dated 17.2.1962 in favour of Range Officer was never withdrawn under resolution dated 18.3.1980. The delegation of powers to make appointment made under the aforesaid two circulars dated 29.10.1957 and 17.2.1963 was withdrawn by the State Government for the first time in respect of Class IV/III post when it issued letter no. 637, 262 dated 28.10.1991, 21.2.1992 respectively which is evident from the circular letter of State Govt. dated 16.4.1996, Annexure-14. It is thus evident that the Regional Director had the powers to make appointment on Class III ministerial post, including the post of Compounder as the pay of the said post was below Rs. 100/- per month until 21.2.1992 as has been held by the Division Bench in the case of Sudhansu Shekhar Mullick (supra). Petitioner was appointed as a Compounder by the Regional Director under order dated 27.2.1989, Annexure-5 when he had the jurisdiction to make such appointment and finding to the contrary recorded in the impugned order dated 7.8.1998, Annexure-1 is error of record. 15. Petitioner was appointed as a Compounder by the Regional Director under order dated 27.2.1989, Annexure-5 when he had the jurisdiction to make such appointment and finding to the contrary recorded in the impugned order dated 7.8.1998, Annexure-1 is error of record. 15. Now for deciding the issue as to whether any vacancy of Compounder was available in the Veterinary Hospital, Maniari on 27.2.1989, I refer to the inspection report of the Regional Director dated 26.11.1987, Annexure-10, wherefrom, it appears that the post of Compounder became vacant with effect from 1.6.1987 as the last incumbent of the said post superannuated with effect from 31.5.1987. Aforesaid post of Compounder was sanctioned by the State Govt. which is evident from the letter of the State Government dated 29.1.1970, Annexure-13 series as salary of the said post was chargeable under the Head 33, Animal Husbandry Hospital and Dispensary. With reference to the inspection report dated 26.11.1987, and the letter of the Joint Secretary of the Agriculture and Animal Husbandry dated 29.1.1970, Annexure-13 series, there is no difficulty in holding that one post of Compounder in the Veterinary Hospital, Maniari was sanctioned which became vacant with effect from 1.6.1987 against which petitioner was appointed on 27.2.1989 and thus the ground taken in the impugned order that Smt.Leela Sharma has been appointed as Dresser against the vacancy of Compounder-cum-Dresser, vide Memo. No. 23 dated 10.12.1990 is erroneous in fact as on 10.12.1990 the post of Compounder in the Veterinary Hospital was not available and was already filled up by the appointment of petitioner under order dated 27.2.1989. 16. In view of my findings above, the impugned order dated 7.8.1998, Annexure-1 is set aside and Respondent No. 3, Director, Animal Husbandry, Bihar, Patna is directed to reinstate the petitioner with back wages with effect from the date of his initial removal i.e. 26.4.1996. 17. This application is allowed. No cost.